Time to abandon ‘beyond reasonable doubt’ and ‘sure’: - PowerPoint Presentation

Time to abandon ‘beyond reasonable doubt’ and ‘sure’: the case for a new description of the criminal standard of proof and an explanation of why and how it should be used Emeritus Professor Adrian Keane, The City Law SchoolAssociate Professor Paul McKeown, The City Law School© Copyright Adrian Keane and Paul McKeown 2018 Centre for the Study of Legal Professional Practice Evidence and Proof Forum

Overview Rationale, degree of certainty and current description.‘Beyond reasonable doubt’: dictionary definitions & evaluation. ‘Sure’: dictionary definitions & evaluation. Combining the descriptions. Explanations or a set form of words? Other unsuitable approaches to the standard of proof. Content of the new definition. The form of a new definition Explanation to jury on how to use the standard. New model direction.

Rationale for high standard of proof All criminal justice systems have a standard of proof which must be met before an accused can be convicted.Need a very high standard to avoid convicting the innocent: impact on innocent accused, on victims of crime, undermines public confidence, cost.Cannot completely eliminate risk of wrongful conviction without a standard of proof beyond all doubt i.e. absolute certainty.

Less than absolute certainty Absolute certainty unrealistic: (a) fact finder not a witness to events; (b) quality of evidence adduced variable; and (c) would be hardly convictions of those guilty of crime. Need a standard short of absolute certainty but close as possible to avoid any wrongful conviction. Description in most jurisdictions: ‘beyond reasonable doubt’.Time honoured (possible first use, Boston Massacre Trials, 1770). See Woolmington v DPP [1935] UKHL 1 and also Lord Denning’s dictum in Miller v Minister of Pensions [1947] 2 All ER 372 at 373-4 .

England and Wales The Crown Court Compendium, Part 1Burden and Standard of Proof 5.1-5.3https://www.judiciary.uk/wp-content/uploads/2016/05/crown-court-compendium-part-i-jury-and-trial-management-and-summing-up.pdf‘The prosecution proves its case if the jury, having considered all the evidence relevant to the charge they are considering, are sure that the defendant is guilty. It is unwise to elaborate on the standard of proof.’ ( Para 5-1 ).

If advocates use ‘beyond reasonable doubt’, jury will be told that this means the same as ‘sure’ ( Para 5-2)Questions about reasonable doubt: jury told that being ‘sure’ means they have ‘no realistic doubts’ (Para 5-3)‘Sure’ may be related to guilt and innocence (‘if you are sure that the defendant is innocent...’) See Compendium Example 1 . Through the Looking Glass

‘Sure’ and ‘reasonable doubt’ (BRD) may be used, and are said to mean the same thing, when they do not. Questions about ‘reasonable doubt’ are met with, ‘sure’ means having no ‘realistic doubts’. Critical decisionThis is the most critical decision jury has to take. I don’t know what you mean…!

We will be suggesting a new directionTwo requirements : (i) an accurate description which reinforces the presumption of innocence; (ii) explains how the jury should make use of the standard in the process of fact finding (fact finding is after all how they reach their verdict).

‘Beyond reasonable doubt’- dictionary definitionsDictionary definitions may indicate how jurors understand the phrase. Not implausible to suggest jurors may be influenced by ordinary meanings recorded in dictionaries.

‘Reasonable’ Key word: locates the concept of ‘beyond reasonable doubt’ on the spectrum of probability (ranges from doubtful to beyond all doubt). Definitions include moderate, not absurd, tolerable, fair. Convey too low a standard. Oxford English Reference Dictionary (bold added): “ 1. having sound judgement; moderate; ready to listen to reason. 2 in accordance with reason [motive, cause or justification; not absurd; 3 a within the limits of reason;… 3c tolerable , fair .” Oxford English Dictionary (bold added): “ A Adjective 1. Within the limits of what it would be rational or sensible to expect ; not extravagant or excessive; moderate… 4.a. Of something abstract: in accordance with reason; not irrational, absurd, or ridiculous; just, legitimate; due, fitting.”

‘Beyond’Lawyers see it as meaning ‘without ’.Most definitions are ‘farther than’. So more than a reasonable doubt, towards no doubt at all? Oxford English Dictionary (bold added): Beyond “…3 a. Beyond the extent of, outside the range of (some action or perception); beyond the scope or sphere of action of.; b. Beyond the capacity or comprehension of…; 10 c. With no possibility of ; so, or such, as not to admit of; so, or such, that there can be no…”

‘Doubt’ Has meanings which denote too high a standard: State of uncertainty’, ‘ being uncertain’ Needs qualifying words to avoid the standard being interpreted as absolute certainty. Qualifying word is ‘reasonable’Oxford English Dictionary (bold added): Doubt “…1 a. The (subjective) state of uncertainty with regard to the truth or reality of anything; undecidedness of belief or opinion … b. The condition of being ( objectively ) uncertain ; a state of affairs such as to give occasion for hesitation or uncertainty .

Evaluation Well known does not mean ‘well understood’ Being ‘well known’ does not equate to comprehension Phrase is not regularly used in ordinary situations or understood the way it is supposed to be in a criminal trial (see Martin CJ, Chief Justice of Supreme Court of the Northern Territory, Paper, (2010); to similar effect, see R v Lifchus [1997] 3 SCR 320 ).

Evaluation Causes uncertainty and disagreement among jurors Juries have difficulty understanding the concept (Darbyshire [2001] Crim LR 970 at 978) Failure to define increases individual uncertainty & group disagreement (Kerr et al (1976) 34 J Pers and Soc Psych 282 at 292). Phrase should be defined. See Victor v Nebraska 511 US 1 (1994) at 26 and R v Lifchus [1997] 3 SCR 320 at [22] (explanation is an “essential element” of instructions to the jury).

Evaluation Interpretation varies; risk of interpreting too low Meuller-Johnson et al (2018): interpretation varies according to gender, age and education. Trimboli (2008): research by New South Wales Bureau of Crime Statistics, 22% of subjects : ‘pretty likely’ or ‘very likely’ . Hastie (Cambridge,1993): among subjects, percentage of confidence needed for conviction ranged from 51% to 92%. Young et al (1993) research in New Zealand: where ‘feeling sure’ or ’being sure of guilt is added, among subjects, the percentage range was 50%-100%. McCauliffe (1982) same range for 171 US federal judges!

EvaluationOverall Dictionary definitions: too low a standard may be conveyed.Research: juries are uncertain as to what the phrase means and, without a definition, there is greater disagreement. Without an explanation, significant number of jurors might apply too low a standard. Even judges are not immune to this.

‘Sure’Early use R v Kritz [1950] 1 KB 82 at 88-90, Per Goddard CJ: ‘the jury must not return a verdict against the defendant unless they feel sure…” R v Summers (1952) 36 Cr App R 14 at 15, Goddard CJ again endorsed ‘sure’, and because of problems with ‘beyond reasonable doubt’. But in R v Hepworth and Fearnley [1952] 2 QB 600 at 603 , Goddard CJ endorsed ‘beyond reasonable doubt’!

‘Sure’- dictionary definitions Carries various meanings. Suggest too high a standard: ‘undoubtedly’, ‘unquestionably’, ‘certain’, ‘having no doubt’Oxford English Reference Dictionary, first entry: ‘ having or seeming to have adequate [sufficient, satisfactory] reason for a belief or assertion’. Numerous entries in the Oxford English Dictionary. Most relevant is perhaps (bold added) “III.  Senses relating primarily to certainty or confidence … 9. In predicative use. Feeling certain in one's mind , convinced; having no doubt or mistrust; confident, assured.” Chambers : 1.” Confident beyond doubt in one’s belief or knowledge” 2. “ Undoubtedly true or accurate’. “To be sure of something: to be unquestionably certain or assured of it”

EvaluationProne to different interpretations Nebulous, indeterminate and range of meanings. Research: juries may interpret it differently.Montgomery (1998): subjects directed ‘satisfied so that you are sure’. 73.5 % who found D not guilty (the right verdict) said 100% confidence was needed, so only 26.5% would convict on less than absolute certainty. 35.7% who found D guilty (the wrong verdict) said 100% confidence was needed.Zander (2000): members of public asked to give a percentage value for sure. 51% of sample said 100%.

Limitations of research Montgomery: no opportunity for deliberation and divorced from the tension of a trial setting; return rate of questionnaire low and relatively small pool (see Glazebrook J in R v Wanhalla [2007] 2 NZLR 573 at [73]). Zander: not linked to a case study and no opportunity for deliberations.Does not take account of ‘subjective’ or ‘functional’ (pragmatic) certainty applied by jurors. Heffer (2003): if jurors thought ‘sure’ meant 100% certainty, there would be very low conviction rates, but this is not the case.

Problems with ‘sure’ remain Range of definitions for ‘sure’ and imprecision: risk of different jurors applying different standards. Particular problem: the degree of certainty imported by ‘sure’ and whether it means absolute certainty. R v JL [2017] EWCA Crim 621 at [13]: “… most people would find it difficult to discern any real difference between the two [namely, “being certain of guilt” and ‘being sure of guilt’]”.

The approach of combining the descriptions The Crown Court Compendium, Part 1, 5, Legal Summary, para 2 : where advocates use reasonable doubt, jury are told it means the same as sure. ‘ R v Lifchus [1997] 3 SCR 320 using ‘sure’ can help after ‘reasonable doubt’ But a very awkward fit. R v Wanhalla [2007] 2 NZLR 573 at [153]: “ The level of certainty or confidence implied by the words ‘are sure’ and ‘feel sure’ do not fit together with the uncertainties implicit in the phrase ‘reasonable doubt’ ”

Combining the descriptions:Questions about ‘reasonable doubt’ The Crown Court Compendium: jury should be told that being ‘sure means having no realistic doubts’. So jury given another alternative meaning. Interpretations of what are ‘realistic doubts’ are likely to be highly variable among jurors according to age and experience.Oxford English Dictionary: Realistic“…3. Concerned with, or characterized by, a practical view of life ; having or showing a sensible and practical idea of what can be achieved or expected.”

The approach of avoiding explanations R v Ching (1976) 63 Cr App R 7, cited in Crown Court Compendium, Part 1, Para 5-1: ‘Should be no gloss’; R v Wilson (1986) 42 SASR 203 at 207: ‘No attempt should be made to explain or define reasonable doubt’; R v Reeves (1992) 29 NSWLR 109 at 117 : ‘ the phrase ‘beyond reasonable doubt’ needs neither embellishment or explanation ’.

The approach of not requiring a set form of words Crown Court Compendium, Part 1 , Para 5-1- 5-2: must be an adequate direction, but no set form of words required. Ferguson v R [1979] 1 WLR 94: no set form of words required, but judges wise to adopt one. Suggested ‘…satisfied beyond a reasonable doubt so that they feel sure of the defendant’s guilt’Other authorities, a little contradictory: they say there is no formula and it is the impact that matters, but often go on to suggest a formula ( eg R v Kritz [1950] 1 KB 82 , cited in Walters v R [1969] 2 AC 26 )

Justifications given for these approaches 1. Jury will know what is reasonable (See R v Pahuja (1987) 49 SASR 191, drawing on Green v R (1971) 126 CLR 28). Then why do they ask for help? Not a widely accepted justification; rejected in N Territory of Australia & Victoria. 2. Standard necessarily variable between juries; some require more proof than others (Lillquist (2002)). Cannot be right in principle. Should be a single standard. D’s liberty should not be dependent on composition of jury, or variable community values on crime control (Horowitz (1997)).

Justifications given 3. Impossibility of task: ‘difficult to articulate’ ( R v Majid [2009] EWCA Crim 2563). But it is possible to define, even if definitions are inherently imprecise (e.g. see definition in Miller v Minister of Pensions [1947] 2 All ER 372 at 373-4 ) 4. Explanations likely to confuse the jury. Unconvincing. Depends on the explanation given. Newman (1993): “ I find it rather unsettling that we are using a formulation [i.e. ‘beyond reasonable doubt’] that we believe will become less clear the more we explain it. ”

Need for explanation & set form of words Promotes consistency Assists juror comprehension (Diamond (1990): meaning of beyond reasonable doubt and sure is not self-explanatory; as a matter of logic juries will be assisted). R v Lifchus [1997] 3 SCR 320: explanation should be detailed. Victor v Nebraska 511 US 1 (1994) : careful instruction needed to avoid juries convicting on a lower standard. If ‘sure’ and ‘beyond reasonable doubt’ continue to be used, should be an explanation and set form of words

Current approach unsuitable ‘Sure’ and ‘beyond reasonable doubt’ do not bear their ordinary or dictionary meanings. Said to mean the same thing when they obviously do not. When explained they have to be given different alternative meanings.

Other Unsuitable ApproachesA doubt which the jury regards as reasonable Degrees of proof within BRDMatters of importance in jurors’ own affairsHonest and reasonable uncertaintyImperceptible doubtMoral certaintyPercentages

A doubt which the jury regards as reasonableQueensland Supreme & District Courts Benchbook : a reasonable doubt is such a doubt as you, the jury, consider to be reasonable, on a consideration of the evidenceR v Wanhalla [2007] 2 NZLR 573 at [48]: ‘a circular explanation’

Degrees of proof within BRDDenning LJ in Bater v Bater [1951] P 35 at 37: ‘…there may be degrees of proof within that standard [BRD]…in proportion as the crime is enormous, so ought the proof to be clear.’Repugnant in principle for it to be easier to convict of a lesser offenceDegrees of proof within a standard rejected: R(N) v Mental Health Review Tribunal [2006] QB 468 at [60] – [62]No logical or necessary connection between the seriousness of an allegation and the probability that what is alleged occurred: Baroness Hale in Re B (Children) [2009] 1 AC 61

Matters of importance in jurors’ own affairsWalters v R [1969] 2 AC 26 and R v Ching (1976) 63 Cr App R 7Involves risk-taking and therefore too low a standard: R v Lifchus [1997] 3 SCR 320 at [24]May concern future actions; decision-maker aware of many relevant facts and can undertake own fact-finding; and different individuals may take different levels of care and reflection: R v Wanhalla [2007] 2 NZLR 573

Honest and reasonable uncertaintyR v Wanhalla [2007] 2 NZLR 573‘Uncertainty’ is just another word for ‘doubt’ so ‘reasonable uncertainty’ bears the same range of meanings as ‘reasonable doubt’, allowing different jurors to apply different standards

Imperceptible doubtZuckerman, The Principles of Criminal Evidence (New York, 1989) 134-6Imperceptible means too small to be noticed (without magnification) Begs the question: how small a doubt?

Moral certaintyApproved by HCA in Brown v R (1913) 17 CLR 570 , 595 and popular in the US although criticised in Victor v Nebraska 511 US 1 (1994)In many jurisdictions, not a phrase in common useThe dangers of morality-based verdicts: Pattenden, ‘Explaining a “reasonable doubt” to juries’ (1998) 2 E&P 253, 258-259

PercentagesBut where precisely to fix the percentage is problematic: Darbyshire, ‘What can we learn from published jury research. Findings for the Criminal Courts Review 2001’ [2001] Crim LR 970, 974 A more fundamental problem: fact-finding is very rarely dependent on the use of precise degrees of probabilityInferences stem from broad generalizations: Zuckerman, ibid, 132.

A new definition - ContentExplain that ‘beyond reasonable doubt’ is not the testStress at an early stage that the standard is ‘very high’ Explain why (to protect the innocent from being convicted) but……Avoid maxims to the effect that it is better to acquit n guilty persons than convict one innocent

A new definition – Content (cont’d)Explain that probability is insufficient for a guilty verdict Explain that absolute certainty is not requiredIdentify what mandates an acquittal – use the concept of doubt (unproblematic and useful) and the language of ‘fanciful doubts’ and ‘extremely remote possibilities’

A new definition - FormLogical and comprehensible structureStraightforward syntax As long as, but no longer than, is consistent with accuracy and claritySimple non-technical vocabulary

How to use the standardGuidance at both the start of the trial and in the summing-up Explain the following matters:(i) the seriousness of the crime is not a relevant factor;(ii) application of the standard calls for reason, not sympathy or prejudice

How to use the standard (cont’d)(iii) can only find D guilty if P prove to the criminal standard every element of the offence and disprove to the criminal standard every element of the defence (all to be identified) (iv) Relevant facts to prove elements of the offence or to disprove elements of the defence also require proof to the criminal standard.NB Contrast cases that depend solely upon relevant facts that form ‘strands in a cable’ rather than ‘indispensable links in a chain’

A new model direction

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